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“The Crime without a Name”: A Brief Legal History of Genocide

“The community of nations has in the past claimed and successfully asserted the right to intercede on behalf of the violated rights of man trampled upon by the State in a manner calculated to shock the moral sense of mankind,” writes Phillipe Sands in East West Street (2016), a history of the origins of international criminal law in the aftermath of the Second World War. 


The 1948 United Nations Convention on the Prevention and Punishment of the Crime of Genocide sets out the law still applied today. Ratified or acceded to by 153 states, it obliges them not to commit and to prevent acts of genocide. The first conviction for genocide in an international prosecution was in 1998 at the International Criminal Tribunal for Rwanda, 50 years after the Convention was adopted. Currently, the prosecution of genocide is under the jurisdiction of the International Criminal Court (ICC) after the Rome Statute of 1998 established it as one of the four crimes over which it has authority.


The term ‘genocide’ was coined by Raphael Lemkin, a Polish jurist, lawyer and academic of Jewish descent. Etymologically rooted in Latin and Greek, it is an amalgam of genos (race, tribe) and cide (killing). First appearing in his 1943 book The Origins of Axis Rule in Europe, he had begun working in the 1920s on a legal concept that could be applied to crimes committed against a specific ethnic group, as he thought the treatment of war crimes in the Hague Conventions of 1899 and 1907 was not sufficiently nuanced. He was invited by Supreme Court Justice Robert H. Jackson, the Chief Counsel at the International Military Tribunal in Nuremberg, to join his team at trial. His encyclopaedic knowledge of the law was useful, but his new concept of ‘genocide’ failed to make it into the official Nuremberg Charter, and thus was not included in the verdict. Lemkin died in 1959, relatively unknown and unaware of the effect his work would have on international criminal law.


Genocide as a legally delineated international crime is defined in the 1948 Convention as “the commission of certain prohibited acts committed with an intent to destroy, in whole or in part, a protected group, as such. The protected groups are national, ethnic, racial, or religious groups. Groups not characterised as such are not ‘protected groups’ for the purposes of the Genocide Convention.” It is clearly distinguished from other conceptions of genocide, such as that of a culture. Although there can be a finding of state responsibility for genocide even when an individual has not been convicted of the crime, charges of genocide can only be brought against an individual and not against a state. For conviction, the prosecution must prove both the actus rea, which is what is specified in the UN Convention, and the mens rea, the specific intent to destroy an ethnic group. The mens rea is what distinguishes ‘genocide’ from ‘crimes against humanity.’ The Convention outlines the actus rea of genocide which can be the killing of members of the group, causing serious bodily or mental harm, deliberately inflicting living conditions intended to destroy the group (in whole or in part), imposing measures intended to prevent births, and forcibly transferring children to another group. It is important to note the distinction between the legal definition of and what may be considered politically and socially as genocide. 


Both international and national courts have prosecuted individuals accused of committing genocide. The International Criminal Tribunal for the former Yugoslavia prosecuted crimes against humanity in the Balkans in the early 1990s between 1993 and 2017, including the Bosnian Genocide. The International Criminal Tribunal for Rwanda (ICTR) prosecuted the perpetrators of the 1994 genocide between 1994 and 2015. National courts in Germany, Canada, France and the USA have also prosecuted individuals on genocide charges. Since its creation in 1998, the ICC has never tried and convicted an individual of genocide, and the only indictment it has issued was in 2009 against Al Bashir Omar Hassan Ahmad, President of the Republic of Sudan. The ICTR indicted 93 individuals, of whom 62 were sentenced, 14 were acquitted and 10 were referred to national jurisdictions for trial. The remaining indictees were either referred to the International Residual Mechanism for Criminal Tribunals, died before judgment or had their indictments withdrawn before trial. The ICTR was the first international tribunal to define rape in international criminal law and consider it as actus rea of genocide. 


Several issues which are difficult to resolve arise from the ICC and prosecutions of genocide. First, the ICC cannot make arrests; it can only issue indictments and arrest warrants. Secondly, its rules only bind member states, and non-members are only under its jurisdiction if they accept it ad hoc or are referred to by the UN Security Council. Thirdly, ‘intent’ is difficult to establish and assign to individuals, but it is definitionally necessary for an act to be considered genocide.


What is the future of the jurisprudence and prosecution of genocide? 70 years after the word first appeared and 29 years after the first conviction, the scholarly debate is rich. Can we consider events that took place before the Second World War as genocide or was the concept as we understand it born in the post-war world? What risks arise from the misuse of the word in the media? What role should politics and politicians play in the discussion? Lemkin pondered many questions whilst developing his revolutionary legal concept but opened up a discussion that is far from over.

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